Caitlin McCaffrie joins JiC for this fascinating post on the impact of the Extraordinary Chambers in the Courts of Cambodia’s impact on educating youth about the crimes that this hybrid court examined and addressed. This marks the fifth installation in our ongoing symposium on Hybrid Justice. Caitlin is the Co-Director of Cambodia programs for the WSD Handa Center for Human Rights and International Justice.

Cambodian school children in Phnom Penh (Photo: AP Photo/Heng Sinith)

Many have remarked on the recent re-emergence of hybrid tribunals as mechanisms of international criminal justice. It is thus timely to further explore the particular characteristics of hybrids and what potential impacts they can have on the societies they are intended to serve. This post takes the case of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to demonstrate an often overlooked impact of hybrid tribunals: their potential to educate future generations about crimes of the past.

The ECCC began its operations in 2006 after lengthy negotiations between the United Nations and Royal Government of Cambodia. This unique tribunal, sometimes referred to as ‘internationalised’ rather than hybrid, is mandated to try crimes committed on Cambodian territory between 17 April 1975 and 6 January 1979 by “senior leaders and those most responsible.” Hearings in the first case against Kaing Guek Eav, alias Duch, began in 2009. That case ended in 2012 when Duch was given a life sentence on appeal. Two other men, Nuon Chea and Khieu Samphan, remain on trial for a slew of charges with a verdict expected in June 2018. Criticisms of the ECCC are not hard to come by and often centre on its cost (around $300 million) and duration to conviction rate (three elderly men in twelve years). However, can the value and impact of a tribunal really be measured in such terms alone?

The hybrid elements of the ECCC are chiefly its mixed composition and location. All major functions of the tribunal are carried out by both Cambodian and international staff – prosecution, defense, judiciary, administration, security. Also, as opposed to The Hague or Arusha-based tribunals, the ECCC is located on the outskirts of Phnom Penh, within the country affected by the crimes being tried. Perhaps most importantly, proceedings are simultaneously translated into Khmer, English, and French, making them more accessible to the local population. To date, close to half a million Cambodians have either visited the court or attended public information briefings in the countryside. This level of engagement – not to mention those people who have benefited from numerous civil society programs inspired by the ECCC — is unlikely to have occurred if the trials were taking place outside of Cambodia.

It is often said that unrealistic expectations are placed on hybrid courts to be all things to all people. They have variously been expected to achieve ‘justice’, promote reconciliation, provide reparation to victims, symbolise an end to impunity, and improve the capacity of the domestic legal community. In part, this is a reflection of the different motivations of the multiple parties to such tribunals – lawyers may be more interested in improving domestic legal systems, some victims may prioritise ‘justice’ while others are more concerned with punishment or some form of reparation. One group which is often left out of these discussions are the children and grandchildren of survivors. What do they want from a hybrid court? Are their views different from those of their elders?

A recent study carried out in Cambodia asked just this question. Between July and December 2017 the Cambodia Programs of the Stanford-based WSD Handa Center for Human Rights and International Justice (Handa Center) conducted focus group discussions with university students in Phnom Penh to gather their opinions about the ECCC. Interestingly, when asked what they believed was the biggest ‘legacy’ of the Tribunal, the majority of students named the court’s ability to educate their generation about what happened as the ECCC’s most important contribution. This was rated higher than the tribunal’s ability to provide justice, reconciliation or reparation. 

In some ways this is a surprising response. After all, the topic of educating the children of survivors is rarely mentioned in discussions on the ECCC’s legacy. However, perhaps it shouldn’t come as too much of a surprise. The population of Cambodia is overwhelmingly young – approximately two thirds of the population is under 30. This means the majority of the country does not have personal memory of living through the ‘three years, eight months and 20 days’ of the Democratic Kampuchea regime. Instead, young people have learnt about the past either from relatives, government-backed media, or somewhat sparse history lessons in school. It is natural that they have questions. Some students in focus groups said that attending the ECCC had confirmed to them that what they had heard about the past was really true. One student explained that: “It help[ed] me to know what happened [under] the Khmer Rouge… This is the kind of evidence that shows the regime really existed.” These findings dispute commonly cited assumptions that Cambodian youth aren’t interested in learning about the past.

Interestingly, when data was disaggregated by the student’s major, gender, or age, there was no significant difference to their responses – each group saw the educational value of the ECCC as most important. The only group to differ were the group of 10 students who had worked or interned at the ECCC. This subgroup rated ‘providing justice’ as more important than educating the youth. While the sample size is too small to extrapolate conclusions from this group, it nevertheless raises fascinating questions about the view of justice of these 10 students. Were they drawn to work and intern at the court because they saw a value in ‘justice’? Or were their views shaped by their experience at the court?

When asked about the report’s findings, both prosecution and defence lawyers at the ECCC expressed no surprise; each agreeing that the young generation of Cambodians would indeed benefit from the educational value of the ECCC. Naturally, the main historical messages being pushed by defence and prosecution lawyers differ significantly. But teaching both sides of the argument would be of even greater benefit for students in developing the critical thinking skills vital in any study of history.

We should all hope that other countries will not have to wait as long as Cambodia did to see people tried for alleged large-scale crimes. However, valuable lessons can be learned from the experience of the ECCC and what it means for a society to try perpetrators four decades after the fact. The needs of the children of survivors to have their questions about the past answered should be considered along with the needs of survivors when establishing a court in such conditions. Holding the hearings in the country where atrocities took place, in the local language and involving local staff, is one way to make proceedings more accessible and to yield the unintended positive consequences that we’ve witnessed in Cambodia.

The full report, ‘So We Can Know What Happened’: The Educational Potential of the ECCC can be found here.